THE GRIMACE HEARD ROUND THE WORLD: THE POTUS AND SCOTUS AT THE SOTU

By Jerry D. Rose

On the day after President Obama’s State of the Union address, disillusioned former apologists for Obama’s political failure got some relief from the pressure of their painful criticisms of him.  To do this, they focused on the alleged misbehavior or Justice Samuel Alito who, when the President denounced the Court’s decision in Citizens United v. F.E.C. as allowing for the entry of foreign funds into U.S. elections, was caught on camera (he and the other Justices were sitting directly in front of the President) with a variously described shaking of his head and an inaudible sound that could have been “that’s not true.”

For such transgression of public decorum, Glenn Greenwald, who for months has excoriated the Obama administration especially in the area of civil rights violations, produced a Salon.com  column which labeled Alito’s behavior in hyperbolic terms that included characterizing the gestures as a “serious and substantive breach of protocol,” and Alito himself as a “politicized and  intemperate Republican.”  Greenwald asked rhetorically: “What kind of an adult is incapable of restraining himself from visible gestures and verbal outbursts in the middle of someone’s speech?”

Having apparently blinked when this terrible transgression occurred, I had to go back to the videotape recording (see this version with Alito sitting to Sotomayor’s right and judge Alito’s “outburst” for yourself) and my recollection of episode being featured last night on ABC News with the commentary of Jake Tapper, a viewing that shows far less than  “visible gestures and verbal outbursts”: but a somewhat sardonic smile or slight grimace and a turn of his head.  For this a man whose Court has just been blasted by the President of the United States is labelled as a someone more like a child than a responsible adult.

Tapper’s commentary on the episode takes the matter to a more substantive discussion of what the exchange  of denunciation and “verbal outburst” says about the relationship between the President and the Supreme Court.  Having apparently done an unusual act of reportage in comparing the President’s condemnation of the Court’s action with the written text handed to the Vice President at the start of the speech, Tapper noted that Obama added, as a preface to his denunciation, the words “With due respect to the separation of powers,” almost as if he realized, as a professor of constitutional law, that he was about to commit a violation of that constitutional principle in delivering a rebuke to a specific action of a sitting Court.  Tapper said, with what degree of research backing I don’t know, that this was only about the 3rd time that Presidents said anything critical of the Court in almost 200 addresses, and never a specific denunciation of a specific Court action.

Having raised with Tapper this whole issue of the separation of powers in this episode, I am thinking that the whole SOTU exercise is a gross violation of the spirit of the separation of powers. In fact it’s the very opposite of that separation, but rather a celebration of the power of the executive branch over the legislative and judicial ones. From the moment of “Mr. Speaker, the President of the United States” to the innumerable interruptions for standing ovations, it’s an occasion for legislative kow-towing to the presidency, with the somber Justices there as window dressing for this celebration, along with the two cheshire cats (one named Biden and one name Pelosi in this case)  sitting behind the President continually expressing their smiles of approval of anything the President proposes, and pulling the long faces of tragedy when he describes any problems in the state of the union. It appears that decorum allows copious “approval” of the President’s words, but not the slightest word or gesture of disapproval.  (What would a Briton think of this, accustomed to the frequent and verbal “outbursts” of MPs of the statements of government ministers?)

All of this “disrespect” for the separation of powers is only amplified when a great friend of progressive America like Green Greenwald hops on a slight grimace and a few mouthed words by a Justice who happens to be offended by the President’s offensive way of expressing his view as if a man’s perhaps reflexive gesture of disapproval was a terrible breach of judicial decorum.

If you want decorum in our government, I believe a modicum of this could be achieved by a polite assembly of notables from the three branches, at which the President hands in his SOTU report to the Vice-President, the 3-branch notables politely acknowledge the President’s fulfilling of his duties and POTUS retires to the White House to do his job as SCOTUS and the Congress are doing theirs. That would be separation of powers; boring, maybe, but scarcely less so than the numbing rote of scripted applause and certainly less “disrespectful” of the separation of powers as the public and the pundits search for every nuance of “disrespect” by assembled members of the three branches of government.

I know of course that “checks and balances” is the flip constitutional side of the relationship between the three branches and I recognize the urgency of Congress upholding that principle in their approval or disapproval of Presidential nominations to the courts as well as to executive cabinet posts. Without the attitude of “giving the President what he wants” in these appointments, a grossly un-judicial Justice like Alito (or Thomas or Scalia)—reflected in their decisions, not their public manners—would perhaps never be confirmed by Congress; and there’d be no occasion to upbraid the “behavior” of little boys who behave badly when you take them out in public.

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Jerry D. Rose is editor of The Sun State Activist